Error and/or relief
Because their was no requisite relationship between the defendant and the victim, it was error for the court to impose a protective order.
First Holding:
Section 136.2(i)(1) and (i)(2) provide in relevant part that when a criminal defendant has been convicted of a crime involving domestic violence, as defined in Penal Code section 13700 or in Family Code section 6211, the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim or percipient witness of the crime.
Authority:
PEN 136.2(i)
Second Holding:
Penal Code section 13700 defines domestic violence to mean, in relevant part, abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.
Authority:
PEN 13700
Third Holding:
Family Code section 6211 defines domestic violence to mean, in relevant part, abuse perpetrated against:
(a) A spouse or former spouse;
(b) A cohabitant or former cohabitant;
(c) A person with whom the respondent is having or has had a dating or engagement relationship;
(d) A person with whom the respondent has had a child;
(e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected; or
(f) Any other person related by consanguinity or affinity within the second degree.
Authority:
FAM 6211
Fourth Holding:
The defendant did not have a relationship with the victim within the meaning of either Penal Code section 13700 or Family Code section 6211. Nor did the defendant’s crimes fall within any of the other offenses enumerated in section 136.2(i), which lists other qualifying offenses including human trafficking, specified sex offenses, and participation in criminal street gang.
Therefore, the post-conviction protective order was unauthorized under section 136.2(i). It must be vacated.
Authority:
People v. Beckemeyer (2015) 238 Cal.App.4th 461, 466
People v. Delarosarauda (2014) 227 Cal.App.4th 205, 212